When Migraines Make You Miss Work: Intermittent Leave under the Family Medical Leave Act
We have had a number of members of this site who have successfully applied for and been granted Intermittent Family Medical Leave Act (FMLA) status, allowing them to take unpaid time off from work due to their Migraines. I'm writing this article to make you aware of the availability of the FMLA for intermittent leave for Migraines and other chronic illnesses, the requirements and some considerations in applying for and using the status.
Like many statutes, the FMLA started out for one purpose and has been added to and amended to cover more than it originally did. The FMLA passed in 1993 after many years of advocacy work to create a national law protecting the jobs of parents who took maternity or paternity leave, or who needed time off to care for a family member who was ill. In negotiating the statute and the regulations that apply it, it became clear to lawmakers that the same protections were needed for an employee's own serious medical condition. As regulations were applied, employees with chronic medical conditions sought the status, and the regulations were extended to cover them.
The FMLA applies only to employers of 50 or more employees, and entitles any employee who has worked for an employer for 12 months, to have up to 12 weeks unpaid leave in any calendar year to care for their own or a family member's medical need. How this works if you have a chronic condition like Migraine is that you can apply for intermittent FMLA status, entitling you to take leave when you need it, for up to the equivalent of 12 weeks a year. So it may be that you would use your FMLA status to take 2 or 3 days off a month, as needed when you had a Migraine attack.
To qualify for the leave, you must give your employer notice of your need for the leave, together with medical documentation. The more documentation you can provide, the better. It is up to your employer to decide whether you are eligible for the leave, though most employers are unlikely to deny a claim with proper medical backing. For Migraines, you would need your doctor to certify that you are unable to work when you experience a Migraine attack, approximately how many days leave you are likely to need in a typical month, and that this is an ongoing, chronic condition. Your employer can send you for a second opinion, at their cost. The Department of Labor provides a useful set of FMLA FAQs.
FMLA is an important tool to enable those of us with chronic conditions to keep working while caring for our health. It is not a silver bullet for our employment problems, however. There are drawbacks. It is important to remember that it is unpaid leave. Your employer can, if they wish, require you to use up your vacation and paid sick time before you use FMLA time. While this may be better for your wallet, it can have the effect of denying you any time off unless you are sick. You must give your employer as much notice as possible when you are going to use your intermittent leave time. Those of us with Migraine disease all know that sometimes Migraines are sudden, but if there are warning signs and you are aware that you will need to use the leave, give as much notice as you can. Your employer can require you to have your need for the leave recertified by a doctor, at your cost, as often as every thirty days.
While you cannot be denied other legal rights due to taking FMLA status, and your employer cannot legally interfere with your rights under the Act, there can be impacts to your career. If being out of work a certain number of days means you don't meet certain performance goals, you may not receive the promotions or benefits that would come from meeting those goals. However, the same would be true if you worked while sick and couldn't meet the goals, and you're certainly better off in terms of your career than if you had to stop working altogether!
If you need to take time off due to Migraines, it is best to use your paid sick time (might as well get paid!) and then apply for FMLA status if you work for a large enough company. It is always better to let your employer know why you need the time off and make a record in case of the need to apply for disability or to take legal action in the future.
Some employers are suspicious of intermittent FMLA leave. While they will grant the status for fear of lawsuits and EEOC intervention, they will oversee it rigorously. FMLA Online, an HR blog, cautions employers that there is "rampant intermittent FMLA abuse," people who are trying to use FMLA status to beat the system at their employer's expense, citing for example:
Stories like this: A nurse who gets migraines and needs time off on Fridays, Mondays and the day before or after a legal holiday.
FmlaOnline.com, "FMLA Intermittent Leave: Don't Let Employees Beat the System".
I share this not to scare you out of applying for the status, but to prepare you that it may not be easy. There probably are people who abuse the system. There are also many misconceptions about Migraine and chronic illness. You may face all of those when you apply.
You may need to educate your employer about Migraine disease or your other chronic condition. Some employers will be more or less compassionate and enlightened than others. Their bottom line will always be the bottom line - what do you bring to the company, what do you contribute. They will want to comply with the law, they may want to help you as well, but their first concern will be the integrity of their organization. Try to give them as much information as you can, and to show your concern for the job and the organization, and it may make your way easier.
~This sharepost is legal education, not legal advice. No attorney-client relationship is created.~